Our overall impression is that the facility provided by Ingliston is similar to a fair or amusement park. Members of the public attend Ingliston's event days with the purpose of having an enjoyable day out. Customers buy tickets which give them access, at designated times, to a gated area in which they drive, or are driven, in "supercars" which are marketed as providing a thrilling experience. Customers derive excitement from driving, or being driven, fast in a high-powered vehicle around an off-road track. Many, or most, fair and amusement park rides share the features of speed, thrills and excitement; others (such as dodgems and go-karts) are even more similar in that customers can drive vehicles themselves.
We note that Ingliston's facility is peripatetic. In line with the CJEU's observations in Phantasialand , a fair would be expected to be peripatetic, but an amusement part would not. As such we consider this to be a neutral factor in the question of whether Ingliston's facility is similar to a fair or amusement park.
HMRC drew attention to what was said in Young Driver at [55] and [56] on the subject of whether the appellant business in that case was offering an experience that was similar to a circus or fair. At [55], the Tribunal contrasted a circus or fair, which has a range of attractions around which customers are free to wander, with the appellant business, which offered a specific pre-booked experience in a fenced off area. At [56], as described above, the Tribunal rejected an argument that the experiences supplied by the appellant in that case were comparable with a dodgem car ride.
We have already found that the supplies made by Ingliston are different from the supplies made by the appellant in Young Driver. This means that even if (which is not the case) we were bound by the decision in Young Driver , the comparison made by the Tribunal in that case between the appellant business and the attractions specified in Group 16, is not the same as the comparison we must make between Ingliston's business and those same attractions.
We accept that a fair or amusement park has multiple attractions, whereas Ingliston does not. Mr Hayes drew attention, in this context, to the different experiences sold by his business such as the two-seaters versus four-seaters, extra laps and so on, but we agree with HMRC that this is not the same as the multiple attractions in a large area provided by an amusement park.
Again, however, to succeed in this appeal Mr Hayes does not have to demonstrate that Ingliston's facility is a fair or amusement park. What we must decide is whether Ingliston provides a facility that is similar to a fair or amusement park, interpreting that term strictly and in accordance with everyday language. In our view, for the reasons we have given, the answer is yes.
Additional points raised in submissions
Mr Hayes, on behalf of Ingliston, made submissions on two other areas, which we allude to here briefly as we wish to make clear that we did not take these submissions into account in reaching our decision.
The first set of submissions concerned a redacted letter relating to another taxpayer which was included in the hearing bundle at Mr Hayes' request. The letter was from HMRC. Mr Hayes submitted that it demonstrated HMRC's approach to another business, which Mr Hayes considered to be similar to his own.
We explained to Mr Hayes during the hearing that we would not be able to take into consideration HMRC's treatment of another business, as we knew very little of the circumstances of that other case and HMRC are bound by confidentiality not to disclose information about a different taxpayer. We have therefore taken no account of the redacted letter in reaching our decision.
The second set of submissions concerned the very significant difficulties experienced by Ingliston, and Mr Hayes personally, during the covid pandemic. Related to this, Mr Hayes submitted that Ingliston was precisely the type of hospitality and leisure business that Parliament had intended to assist through the temporary VAT reduced rating brought in by Group 16.
We have accepted the truthfulness of all Mr Hayes' witness evidence, and this includes his evidence about the hardships he and his business went through during the pandemic. We also accept that the covid pandemic explains the timing of the introduction of Group 16.
For the purposes of deciding this appeal, however, our approach has been to interpret Item 7 and Group 16 in line with the guidance provided by the CJEU in cases including Erotic Center and Phantasialand , and to apply this interpretation to our findings of fact. We do not consider that it would be right for us to place an additional gloss on our interpretation of these provisions because Group 16 was introduced at the time of the pandemic, and we have not done so.
Disposition
For the reasons we have given, Ingliston's appeal is allowed.
As a result, the VAT assessment for period 10/20 is discharged, and Ingliston is entitled to recover input tax of £13,109.20 (the original claim was for £15,200.67, but this is reduced due to the inaccuracies discovered by HMRC, as referred to above).
Right to apply for permission to appeal
This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to "Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)" which accompanies and forms part of this decision notice.
Release date: 22 nd MAY 2025